FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

February 28, 2024

AOR 2024-01 (Texas Majority PAC)

Comment from AFL-CIO

Attached is AOR 2024-01 (Texas Majority PAC) Comment from AFL-CIO. 

This matter will be discussed at the next scheduled Open Meeting on 

February 29, 2024.

Attachment 
MICHAEL B. TRISTER 

 (1941-2018) 

 _____________________

B. HOLLY SCHADLER 

LAURENCE E. GOLD 

ALLEN H. MATTISON

DAVID M. WACHTEL

JESSICA ROBINSON

KAREN A. POST

ELIZABETH A. GROSSMAN

PHILIP R. EAGER

BRIANA E. THIBEAU

Of Counsel

JOSEPH W. STEINBERG

SARAH E. NASON

JOHN O. SAWYKO

RENATA E. B. STRAUSE

SUSAN B. GERSHON

KAREN E. TANENBAUM

LAW OFFICES

Trister, Ross, Schadler & Gold, PLLC

1666 CONNECTICUT AVENUE, N.W., FIFTH FLOOR 

WASHINGTON, D.C. 20009

PHONE: (202) 328-1666

FAX: (202) 204-5946

www.tristerross.com

 

 February 28, 2024

By email to ao@fec.gov

Lisa J. Stevenson

Acting General Counsel

Federal Election Commission 

1050 First St., NE

Washington, DC 20463

Re: Advisory Opinion Request 2024-01

 Texas Majority PAC

Dear Ms. Stevenson:

We write on behalf of the AFL-CIO, the national labor federation of 60 national and 

international unions representing over 12.5 million members, regarding the pending advisory opinion 

request (AOR) by Texas Majority PAC (TMP) and Drafts A and B of an advisory opinion that the 

Commission has made public. For the reasons explained below, we urge the Commission to adopt the 

conclusions in Draft B that TMP’s prospective residential canvassing is not a form of “public 

communication” within the meaning of 11 C.F.R. § 100.26, so that canvassing cannot be an in-kind 

contribution to a candidate or political party under 11 C.F.R. § 109.21. 

The AFL-CIO and many of its affiliated unions and their federal and nonfederal political 

committees have long engaged in residential canvassing with respect to public elections of candidates 

and ballot measures. These canvasses variously are directed to union members and the general public. 

Canvassing may be undertaken in different ways. Often a canvass is undertaken by an organization or 

a political committee deploying its own employees or volunteers to convey an oral message, 

sometimes supplemented with flyers that the organization itself produced or engaged a commercial 

vendor to devise featuring the organization’s message, to a subset of residents selected by the 

organization. In such a circumstance there is no “rel[iance] on a third party,” as Draft A puts it, at p. 

8. Whatever the Commission concludes in addressing this AOR, it should cast no doubt on the 

proposition that such canvassing is not general public political advertising.

1

Drafts A and B reach opposite conclusions on this issue solely due to disagreement concerning 

how to characterize the commercial vendor that TMP would retain in order to train and deploy 

canvassers on its behalf: would the commercial vendor be a “’go-between’” or “intermediary” bearing 

“the common elements of general public political advertising,” per Draft A, at pp. 8-9 and n. 15, or 

 

1 Draft A, at p. 10, n. 40, underscores that it applies to “only TMP’s proposed paid canvass as described in the request” and 

not “door-to-door canvassing in general.” If the Commission adopts Draft A it should retain this qualifying language.
Federal Election Commission

Page 2

“simply act as TMP’s agent[] in carrying out a canvassing program that TMP controls,” per Draft B, at 

p. 9?

2

 We submit that Draft B’s conclusion is correct.

The Commission since at least 2006 has embraced the view that the undefined phrase “general 

public political advertising,” both as illustrated by the specific media listed in 11 C.F.R. § 100.26 and 

as a category that may include unspecified other media, entails paying “for access to an established 

audience using a forum controlled by another person rather than using a forum that he or she controls 

to establish his or her own audience”3; such advertising “lends itself to distribution of content through 

an entity ordinarily owned or controlled by another person” that is “generally a facility owner,” as 

distinct from, for example, “a communication to the general public on one’s own website.”4 The 

Commission reaffirmed that analysis last year when it amended its regulations regarding disclaimers 

on Internet public communications.5 And, in AO 2022-20, the Commission concluded that text 

messages to an opt-in audience resembled one’s own website rather than “traditional forms of paid 

advertising” specified in 11 C.F.R. § 100.26 “where a speaker pays to disseminate a message through 

a medium controlled, and to an audience established, by a third party”6; the opinion also described 

those media as “typically requir[ing] the person making the communication to pay to use a third 

party’s platform to gain access to the third party’s audience.”7 

Canvassing is a form of communication that aggregates in-person one-on-one communications. 

Canvassing with and without flyers is a means of political communication that long predates any of 

those enumerated in 11 C.F.R. § 100.26 (with the exception of newspapers, which date to the Colonial 

Era), yet Congress has never suggested that canvassing should be regulated, the Commission has never 

taken regulatory action to define canvassing as a public communication, and the Commission’s 

treatment of the question otherwise has been inconclusive. The grassroots in-person contacts that 

comprise the communications in canvassing are “fundamentally different” from the “mass 

communication contemplated in the Act,” as three Commissioners aptly observed six years ago in 

concluding that canvassing is not a public communication.8 Three other Commissioners in 2007 

 

2 Both drafts conclude that the canvass, if coordinated, would not be a coordinated “expenditure” within the meaning of 11 

C.F.R. § 109.20(b) because only 11 C.F.R. § 109.21 provides the coordination standard for communications. This is 

plainly correct for the reasons each draft articulates, and as explained by TM PAC’s AOR, at pp. 8-12, and by the AFLCIO’s comments on TMP’s previous AOR 2023-26. The Commission’s final advisory opinion also should so conclude.

3 Federal Election Commission, “Internet Communications,” 71. Fed. Reg. 18589, 18594-18595 (April 12, 2006) (“Internet 

E & J”).

4

Id. at 18594.

5 Federal Election Commission, “Internet Communications Disclaimers and Definition of ‘Public Communication’,” 87

Fed. Reg. 77467, 77470, 77471 (December 19, 2022) (stating that the Commission “intends to regulate only

communications placed for a fee ‘through an entity ordinarily owned or controlled by another person,’ analogous to the 

forms of ‘public communication’ already included in [11 C.F.R. § 100.26]” (citing the preceding NPRM).

6 Advisory Opinion 2022-20, p. 5 (October 4, 2022).

7

Id., p. 4 (footnote omitted). 

8 See Concurring Statement of Vice Chair Caroline C. Hunter and Commissioners Lee E. Goodman and Matthew S. 

Petersen, Advisory Opinion 2016-21 (January 12, 2017).
Federal Election Commission

Page 3

reached the same sound conclusion in an enforcement case, two in explicit reliance on the Internet 

E&J’s analysis quoted above.9 

A commercial vendor that hires, trains and handles the payroll for a canvass that conveys the 

contracting organization’s message in that organization’s name, in the manner dictated by that 

organization, to the residential subset that organization devises, as TMP plans, is no more than the 

agent for the organization because the vendor provides services that the organization itself could have 

performed itself by its own direct hiring and training but chose not to for administrative convenience. 

The canvass vendor acts entirely under the organization’s control and is indistinguishable to the 

audience from the organization itself. The vendor is not a “go-between,” an “intermediary,” or akin 

to a digital platform, periodical publication, television or radio station, or billboard operator, all of 

which provide communications platforms that the communicating organization could not create for 

itself. The vendor is an instrument for reaching voters in person at their homes; residential doorways 

are not owned, controlled or maintained by the vendor for “advertisers” to pay to access. Draft B, at p. 

9, is therefore correct in concluding that “canvassing involves individual people talking face-to-face 

with voters,” a “traditional grassroots activity fundamentally different from the types of mass media 

enumerated in the statutory definition of ‘public communication’” (footnote omitted).

Draft A, at p. 8, reasons that the very act of payment to a third party in order to communicate 

with the general public constitutes general public political advertising. However, that speech may 

entail a cost in order to reach potential voters is not the touchstone of a “public communication” under 

52 U.S.C. § 30101(22); if it were, then that provision would apply to any “disbursement,” as 52 U.S.C. 

§ 30120(a) does with respect to express advocacy. But it doesn’t; instead, it plainly contemplates a 

lesser reach, to a subset of paid communications called “general public political advertising” as 

illustrated with specific examples. And, the term “advertising” is key, as the Commission explained in 

the Internet E & J with citations to two sources that identified the kinds of media specified at 52 

U.S.C. § 30101(22) and a third authority that, the Commission stated, reflected “[a]n extensive survey 

of advertising and marketing textbooks [that] revealed ‘certain recurring elements [of advertising]: (1) 

Paid, (2), nonpersonal, (3) identified sponsor, (4) mass media, and (5), persuade or influence[.]”10 

That analysis demonstrates why Draft A, at p. 9, errs in asserting that canvass distribution of literature 

is “functionally similar” to “mass mailings” and “telephone banks,” which 52 U.S.C. § 30101(22) also 

 

9 See MUR 5564, Statement of Reasons of Vice Chairman David M. Mason and Commissioner Hans A. von Spakovsky at 

8-9 (December 21, 2007); id., Statement of Reasons of Chairman Robert D. Lenhard at 4 (December 31, 2007). 

Draft A. at pp. 9-10, cites two dispositions of Matters Under Review (MURs) as demonstrating that “the Commission has 

previously concluded that materials distributed door-to-door by hand can constitute general public political advertising.” 

But these were cursory dispositions of disclaimer violations that do not compel the Commission’s advice to TMP. Each 

matter concerned an authorized candidate committee’s compliance with 52 U.S.C. § 30120(a), which requires a disclaimer 

when there is a “disbursement” by a political committee either for “general public political advertising” or otherwise “for 

the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate.” In 

MUR 6778 (David Hale), the Commission approved a First General Counsel’s Report that concluded without analysis that 

a candidate’s door hanger satisfied both categories and that the Commission should exercise its prosecutorial discretion to 

dismiss the matter. In MUR 4741 (Mary Bono Committee), the Commission approved a General Counsel’s Report that 

included a similarly conclusory finding that door hangers comprised “general public political advertising” three years 

before the Bipartisan Campaign Reform Act of 2002 defined “public communication” and, eventually, prompted the 

current regulatory architecture for that term and for what constitutes coordination. 

10 Internet E & J, 71 Fed. Reg. at 18594, citing and describing M. Curran, Oracles on Advertising: Searching for a 

Definition, 31 Journal of Advertising at 3 (June 2002).
Federal Election Commission

Page 4

enumerates: mass mailings and telemarketing are “nonpersonal” means of mass advertising that for 

generations have been deployed to promote commercial products to the public. They are utterly unlike

visits to people’s homes for personal conversations with those willing to engage in them, accompanied 

sometimes by the offer of written material that the residents may or may not accept. The Commission 

should accord those grassroots contacts the regulatory space that befits them.

Accordingly, we respectfully suggest that the Commission render an advisory opinion that 

reaches the conclusions set forth in Draft B that are consistent with the preceding analysis. Thank you 

for your consideration.

Respectfully submitted,

Laurence E. Gold

(202) 464-0353

lgold@tristerross.com

Renata E.B. Strause

(202) 964-6524

rstrause@tristerross.com

Counsel to the AFL-CIO

cc: Matthew Ginsburg

 General Counsel, AFL-CIO